O'Hara v Kmart Tyre & Auto Service

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

O’Hara v Kmart Tyre & Auto Service [2020] QCATA 180

PARTIES:

MICHAEL O’HARA

(applicant\appellant)

v

KMART TYRE & AUTO SERVICE

(respondent)

APPLICATION NO/S:

APL150-19

MATTER TYPE:

Appeals

DELIVERED ON:

20 May 2020

HEARING DATE:

23 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where respondent carried out service inspection of the applicants vehicle – where vehicle’s engine destroyed by fire 9 months after the inspection – where probable cause of fire due to defective/perished fuel line – where applicant sought to lead fresh evidence in the appeal – whether the respondent prejudiced by fresh evidence – whether the respondent failed to identify faulty fuel line on inspection – whether causal connection between service inspection and cause of fire – whether reasonable basis to disturbing findings of fact – whether evidence support a finding that fuel lines defective at the time of the service inspection – whether any basis for leave to appeal.

Queensland Civil and Administrative Tribunal Act 2009 section 142(3)(a)(i)

Bradlyn Nominees Pty Ltd v Saikowski [2012] QCATA 39.

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404.

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43].

Terera & Anor v Clifford [2017] QCA 181.

APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. The applicant was the owner of a 1973 Mercedes Benz 350 Sports Coup. On 11 June 2017 the engine was badly damaged as a result of a fire in the engine compartment of the vehicle. It would seem probable that the fire was caused by fuel leaking into the engine compartment which ignited and quickly spread out of control. Fortunately for the applicant, he was aware something was amiss because as he was driving down the M1 motorway towards the Gold Coast when his fuel gauge suddenly dropped. He managed to pull off the highway near Helensvale and got to a Caltex service station before the fire took hold. The applicant blames the respondent for the cause of the fire and commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal to recover damages.

2. On 31 August 2017 the applicant  took the vehicle to Kmart Tyre & Auto Service Centre Browns Plains (“Kmart”) for a service and inspection. On the Inspection Report (the report) it is noted that the ‘fuel line condition/leaks’ box was ticked indicating there was no visible issue or defect with them. However in the body of the report it is also noted  that ‘hoses old and perished’. The applicant says this should have alerted Kmart to the condition of the fuel lines and they should have been replaced or at least he should have been told of their condition. Had it done so the problem…